Dishonor of Cheque – Handwriting Expert – To compare ink used in the body of cheque – Application not to be declined merely because accused has admitted his signatures on cheque

Mr. Raj Shekhar Attri, J. (Oral) - Through this revision petition filed under Section 401 of the Code of Criminal Procedure (for short ‘Cr.P.C.’), petitioner is challenging order dated 30.05.2014 (Annexure P-5) in Criminal Complaint No.1008/2/09 of 22.07.2008, whereby the application filed under Section 311 Cr.P.C. for examination of expert witness to elicit the differences in ink on the cheque in dispute was declined.

2. Undisputedly, complainant/respondent-Amandeep Singh had filed a complaint under Section 138 of the Negotiable Instruments Act against the petitioner. The case was fixed for defence evidence under Section 243 Cr.P.C. read with Section 247 Cr.P.C. He moved an application under Section 311 Cr.P.C. for permission to cross-examine the handwriting expert. The said application was contested by the complainant- Amandeep Singh and the same was dismissed vide order dated 30.05.2014 mainly on the ground that the accused has admitted his signatures on the cheque in question. Therefore, he cannot dispute with regard to his handwriting on the cheque.

3. I have heard learned counsel for the parties and gone through the record.

4. Hon’ble the Supreme Court in Zahira Habibullah Sheikh and another v. State of Gujarat and others; 2006 (2) RCR (Criminal) 448, has held in para 25 and 26 as under : -

“25. In this context, reference may be made to Section 311 of the Code which reads as follows:

“311. Power to summon material witness, or examine person present.

Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” The section is manifestly in two parts. Whereas the word used in the first part is “may”, the second part uses “shall”. In consequences, the first part gives purely discretionary authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.

26. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosec